2005509 (Migration) - [2024] AATA 759

2005509 (Migration) [2024] AATA 759 (29 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Karyn Anderson
CASE NUMBER:  2005509
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Tegen Downes
DATE:29 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·309.228 of Schedule 2 to the Regulations; and

the second named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:
·PIC 4007(2)(b) for the purposes of cl 309.228 of Schedule 2 to the Regulations.

Statement made on 29 February 2024 at 10:11am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – health criteria – mild functional and cognitive impairment – mild developmental delay – Medical Officer of the Commonwealth (MOC) opinion – significant cost to the Australian community – Commonwealth disability services – special education services – waiver of requirement – Australian citizen child residing in Australia – sponsor unable to return to Pakistan – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 309.228; Schedule 4, PIC 4007
CASES
Bui v MIMA (1999) 85 FCR 134
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182
Singh v Minister for Home Affairs [2020] FCAFC 7
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 12 February 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 June 2013. The delegate refused to grant the visas as the applicants did not satisfy cl 309.228 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the secondary applicant did not meet the health criteria in Public Interest Criterion (‘PIC’) 4007 of Schedule 4 to the Regulations.
The review applicant was represented in relation to the review. The representative filed comprehensive written submissions dated 15 December 2023, which were of great assistance to the Tribunal.
I did not invite the review applicant to appear before the Tribunal in accordance with s 360 of the Act because I considered that I should decide the matter in the review applicant’s favour having regard to the material before me.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUE AND LAW
Clause 309.228 of Schedule 2 to the Regulations relevantly requires that each member of the family unit of the applicant,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2005509 (Migration)

Details

AGLC: 2005509 (Migration) [2024] AATA 759
Case: [2024] AATA 759
Decision Date: 29 February 2024

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, Subclass 309, by a woman from Pakistan and her young child. The sponsor, an Australian citizen, was the partner of the primary applicant and the father of the secondary applicant. The sponsor and another child of the couple resided in Australia. The secondary applicant was found by a Medical Officer of the Commonwealth to have mild functional and cognitive impairment and a mild developmental delay, which was assessed as likely to result in significant costs to the Australian community through the need for health and community services. The delegate declined to waive this health requirement, finding that mitigating factors and compassionate or compelling circumstances did not outweigh the potential costs.

The court was required to determine whether the secondary applicant met the health criteria for the visa, specifically PIC 4007, and whether the health waiver under subclause (2) of clause 4007 should have been granted. The court also considered the procedural instructions regarding the best interests of a minor child residing in Australia and the potential for long-term separation of minor children from their parents.

The court reasoned that the delegate had erred in not adequately considering the best interests of the child, which should be a primary consideration when a decision affects a minor child in Australia. The court noted that the sponsor and one child were Australian citizens, and the sponsor had a history of returning to Pakistan to be with his wife, suggesting a desire for family unity. The court also considered the specific circumstances outlined in the procedural instructions, such as the potential for long-term separation of minor children from their parents. Ultimately, the court found that the application should be remitted for reconsideration.

The Tribunal remitted the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant met the criteria for a Subclass 309 visa, and the second named visa applicant met the criteria under PIC 4007(2)(b) for the purposes of clause 309.228 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Further, the procedural instruction provides that when considering applications by a biological child of the sponsor, consideration and weighting should be given (where applicable) to:·the best interests of the child, which should be treated as a primary consideration where the decision affects a minor child or children in Australia. Section 65 delegates should also consider whether or not exercising the health waiver would cause or lead to the continued long-term or permanent separation of minor children from their parents, where either the child or the child’s parent or parents are in Australia;·whether or not the child was declared and/or included in any previous applications for a permanent visa;·the circumstances that led to the child not being included in the parent/s successful migration application (for instance if the child was a non-migrating family member (in the custody of another person), whose condition was not disclosed to the department and/or who did not complete health examinations for that application, why is the child now migrating;·circumstances where a child was declared to be non-migrating, however, a Child visa application was lodged shortly after the parent’s permanent visa was granted; or·whether the family has the legal right, and could easily enter and reside in another country with no particular hardship (for example, the sponsor has only recently been granted a permanent Australian visa/citizenship, and still holds citizenship for another country, or the family have been residing in another country for a significant period and are eligible to remain there).”CONSIDERATION OF CLAIMS AND EVIDENCEBackground The primary applicant is a [age]-year-old woman from Pakistan. She claims to be in a partner relationship with the sponsor. The secondary applicant is the couple’s child, aged [age] years. The couple also have another child, aged [age] years. Currently, the applicants reside in Pakistan. The sponsor and the other child reside in Australia and, at the time of decision, are both Australian citizens. The sponsor arrived in Australia in 2011 and was granted a protection visa in 2012 on the basis that he believed he would be at risk of serious harm in Pakistan. Despite this, the sponsor has returned to Pakistan to spend time with his wife. The delegate found that the secondary applicant failed to satisfy PIC 4007 based on a MOC opinion dated 30 July 2019, which provided that the secondary applicant has mild functional and cognitive impairment and requires intervention to maximize her potential outcome and that a hypothetical person with the same condition of at the same severity would be likely to require health care and/or community services, the provision of which would be likely to result in a significant cost to the Australian community. The estimated costs were as follows: The applicant submitted information to the department in response to the MOC opinion. However, the delegate found that the health requirement should not be waived because the delegate was not satisfied that the potential costs identified were outweighed by mitigating factors and/or compassionate and compelling circumstances.Is the applicant free from the relevant diseases or conditions (PIC 4007(1)(a), (b), (c))?

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:·309.228 of Schedule 2 to the Regulations; andthe second named visa applicant meets the following criteria for a Subclass 309 (Spouse (Provisional)) visa:·PIC 4007(2)(b) for the purposes of cl 309.228 of Schedule 2 to the Regulations.Tegen DownesMemberATTACHMENTMigration Regulations 1994Schedule 44007(1) The applicant:(aa) if the applicant is in a class of persons specified by the Minister in an instrument in writing for this paragraph:(i)must undertake any medical assessment specified in the instrument; and(ii)must be assessed by the person specified in the instrument;unless a Medical Officer of the Commonwealth decides otherwise; and(ab) must comply with any request by a Medical Officer of the Commonwealth to undertake a medical assessment; and(a) is free from tuberculosis; and(b) is free from a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community; and(c) subject to subclause (2) — is free from a disease or condition in relation to which:(i)a person who has it would be likely to:(A)require health care or community services; or(B)meet the medical criteria for the provision of a community service;during the period described in subclause (1A); and(ii)the provision of the health care or community services would be likely to:(A)result in a significant cost to the Australian community in the areas of health care and community services; or(B)prejudice the access of an Australian citizen or permanent resident to health care or community services;regardless of whether the health care or community services will actually be used in connection with the applicant; and(d) if the applicant is a person from whom a Medical Officer of the Commonwealth has requested a signed undertaking to present himself or herself to a health authority in the State or Territory of intended residence in Australia for a follow-up medical assessment — has provided the undertaking.(1A)For subparagraph (1)(c)(i), the period is:(a) for an application for a permanent visa — the period commencing when the application is made; or(b) for an application for a temporary visa:(i)the period for which the Minister intends to grant the visa; or(ii)if the visa is of a subclass specified by the Minister in an instrument in writing for this subparagraph — the period commencing when the application is made.(1B)If:(a) the applicant applies for a temporary visa; and(b) the subclass being applied for is not specified by the Minister in an instrument in writing made for subparagraph (1A)(b)(ii);the reference in sub-subparagraph (1)(c)(ii)(A) to health care and community services does not include the health care and community services specified by the Minister in an instrument in writing made for this subclause.(2)The Minister may waive the requirements of paragraph (1)(c) if.(a) the applicant satisfies all other criteria for the grant of the visa applied for; and(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:(i)undue cost to the Australian community; or(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.

Ratio Decidendi

Legal Principle Established

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